I'm a Fellow at the Adam Smith Institute in London, a writer here and there on this and that and strangely, one of the global experts on the metal scandium, one of the rare earths. An odd thing to be but someone does have to be such and in this flavour of our universe I am. I have written for The Times, Daily Telegraph, Express, Independent, City AM, Wall Street Journal, Philadelphia Inquirer and online for the ASI, IEA, Social Affairs Unit, Spectator, The Guardian, The Register and Techcentralstation. I've also ghosted pieces for several UK politicians in many of the UK papers, including the Daily Sport.

Too Funny, Steve Jobs Invalidated An Apple Patent Over Prior Art

This is an interesting little lesson for people to take to heart: the world does not necessarily work the way you think it does. More specifically, the laws in other places and countries can be very different indeed from what you think they are. This little example is that Steve Jobs managed to invalidate a European patent of Apple'sApple's through showing off the product on stage. This was held to be prior art: and the point is that in the US it would not be so considered, here in Europe it is so considered.

So be warned: the law is not the same everywhere and you should never make the assumption that things work elsewhere like they do at home.

Steve Jobs is a named inventor of more than 300 Apple patents, and when he presented the original iPhone in January 2007, he said, “boy have we patented it!”

But Apple forgot about an important difference between U.S. patent law at the time and the patent laws of the rest of the world, especially Europe. In the United States in the pre-America Invents Act days, innovators had a twelve-month grace period to file for inventions after making an invention, and during those twelve months nothing that anyone would show publicly or publish would be eligible as prior art. In Europe, however, there never was such a grace period for patent applications, and even an inventor’s own public demos could always be held against his own patents if they took place before the filing of an application.

And that’s where it all gets interesting. For on one specific patent to do with rubber banding (also known as the “bounce back” patent and this one is specifically about photo management) the patent was filed within that grace period of 12 months for the US patent. And, of course, priority comes from whoever files the patent first. In this case it was Apple and that’s just fine. But it was also filed some 5 months after Steve Jobs had given the presentation showing the iPhone off to the world. Which is where the problem comes in, for Jobs specifically demonstrated that patent in that presentation. The German court has just ruled that this is obviously prior art: the technique was revealed to the world 5 months before the patent was filed and that’s just prior art. Thus the patent is not valid.

The patent is still valid in the US for Jobs’ revelation did not fall into that definition of prior art in American law at the time: but that patent is not valid over here in Europe any more (or, more accurately, in Germany but most European patent law follows the same style).

The next interesting question is going to be whether the wider set of bounce back patents will also be invalidated over here. For a patent needs to have two claims: originality and non-triviality (also known as non-obviousness or significance). We’ve already seen that on this specific photo application patent the bounce back fails because of that prior art and thus the non-originality. However, the next stage to ask is whether given that the bounce back in a photo application was not original then are other forms of such bounce back non-trivial? It’s certainly possible to say that bounce back in one application makes bounce back in all others obvious, isn’t it? And it’s going to be interesting when we find out whether the courts agree with that argument or not.

For the full detail I suggest you read Mueller. My real point here is to use this as an example of the way in which laws and business practices really do vary considerably around the world. What you think you can do, or the protections you have in the US, it may well be very different in other jurisdictions elsewhere. Obviously, we all know this intellectually but it’s good to be reminded of how careful you really need to be over these things.

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Too funny? I’d say “How sad” that if you invent something and show it off that someone else can claim ‘prior art’ because you show off what you invented. Seems that there should be an exemption for prior art if the patent applicant is the one who demonstrated what they invented.

From the tone of your headline, I’m guessing that you are an Apple hater.

To clarify. Are you suggesting that it is indeed fair that one’s own patent can be invalidated by their own presentation? So it’s ok for people to copy as long as it happens before the patent is filed. Wasn’t there a movie about that on Ford motors stealing the idea for wipers.

Clearly Forbes is not a principle-based periodical but one would hope its contributors would show a little bit less bias.

Which part is supposed to be funny? Jobs said in that very presentation that Apple had patented all sorts of things about the iPhone. That the actual presentation in which he said that invalidates one of the Apple iPhone patents?

Yes, that is, to me, funny.

Agreed, it might not be funny to you. But then it would be a very boring world if we all agreed on everything, yes?

If I was a neutral reporter/journalist, I probably would classify this as unfortunate, rather than funny.

The iPhone was the beginning of the modern era of “smart phone” where it’s UI touch/multi-touch based rather than keyboard based.

Apple’s misstep of not submitting this particular patent before unveiling it to the world is definitely a mistake on their part. If the legal system prevent them from applying a patent based on that, I can’t see anything funny in that at all.

The patent system is clearly broken on many levels including the application process…. It’s a tragedy for everyone in the USA that actually want to innovate on things.

Your sense of humor depends on what country’s law you quote. US law has a 12 month grace period to file a patent from your own prior art examples. German law has no such thing so the immediate invalidation. Jobs may have jumped the gun on proclaiming patents but it is likely did it with s US centric view. You forgot to include a Teutonic smiley at the end of your article.